In just over a month, the justices will meet for their “long conference,” at which they will consider the thousands of petitions for review that have accumulated since their last conference in late June. The justices will grant only a few of these petitions. This post is the second in a series taking a closer look at some of the petitions that have been distributed for the September 28 conference.
Kowall v. Benson is a challenge to the constitutionality of term limits for Michigan lawmakers. In 1992, nearly 60% of the state’s voters approved an amendment to the state’s constitution that bars legislators from being elected to the state’s house of representatives, where lawmakers serve two-year terms, more than three times; legislators cannot be elected to more than two four-year terms in the state senate.
A group of 10 former state legislators went to federal court, arguing that the term limits violate their First Amendment rights to individual expression and freedom of association. The district court rejected their argument, and the U.S. Court of Appeals for the 6th Circuit upheld that ruling.
Calling Michigan’s term limits for state legislators “the shortest in the nation,” the challengers came to the Supreme Court in April, asking the justices to weigh in on both their constitutional argument and on the test that should be used to determine whether term limits violate the U.S. Constitution. They told the justices that, as a result of the term limits, the state’s legislature is less effective. Knowing that their stay in the legislature will be brief, the challengers suggested, politicians instead seek to use their time there as a “springboard” to another elected office. And without the institutional knowledge that experienced legislators bring, the challengers wrote, legislators are more likely to rely on lobbyists and special interest groups.
Jocelyn Benson, Michigan’s secretary of state, urged the justices to stay out of the dispute. Even if there is a First Amendment right to be a candidate for a state office, she stressed, the court of appeals has now twice rejected challenges to the constitutionality of the state’s term limits. And in November, she added, voters in Michigan will consider a change to the state’s term-limits scheme that would allow legislators to serve a combined total of 12 years in both houses.
In Idaho v. Howard, the state has asked the justices to decide what limits the Fourth Amendment places on the use of a dog to search for drugs in cars.
The question comes to the court in the case of Aaron Howard, whose car the police stopped in March 2019. When the police discovered that there were warrants for Howard’s arrest, they arrested him. While sniffing around the outside of Howard’s car, a police dog alerted for drugs after putting its paws on the door and its snout through an open window. The dog’s alert prompted police to search the car, where they found heroin and methamphetamine.
Howard sought to keep the drugs from being used as evidence, arguing that the dog’s contact with the car was a search for which police needed a warrant. After the trial court denied his motion to suppress, Howard pleaded guilty to heroin-trafficking charges and was sentenced to six years in prison. He also appealed to the Idaho Supreme Court, which reversed the trial court’s ruling.
The state came to the U.S. Supreme Court in January, asking the justices to weigh in. It cited opinions by federal courts of appeals holding that when a police dog touches or enters a car without instruction from police, it is not a search for purposes of the Fourth Amendment.
Howard pushed back on the state’s suggestion that the police officer was not responsible for the dog’s actions, contending that the police officer had given the dog specific instructions designed to get the dog as close to the car as possible. Under the Supreme Court’s decisions, Howard contended, there is a search “when the government trespasses in order to obtain information” – precisely what happened here.
In In re Grand Jury, an unnamed law firm that specializes in international tax issues has asked the justices to review a dispute over grand jury subpoenas ordering it to turn over documents that the firm says are protected from disclosure.
The law firm at the center of the case provided one of its clients with legal advice and prepared his tax returns. When a grand jury investigating the client issued subpoenas for documents related to the investigation, the firm provided over 20,000 pages of documents, but it declined to turn over other documents, arguing that they are protected by the attorney-client privilege. Some of those documents, the firm said, are “dual-purpose” communications – in which the firm is both providing legal advice and discussing the preparation of the client’s tax returns.
A federal district court held the firm in contempt for its failure to produce the documents, and the U.S. Court of Appeals for the 9th Circuit upheld that ruling.
The law firm went to the Supreme Court in April, urging the justices to take up its case to “allow lawyers and their clients throughout the country to predict with a high degree of certainty whether their communications are privileged.” The firm’s petition for review asked the court to decide what test courts should use to determine whether dual-purpose communications are shielded from disclosure. Although the 9th Circuit in this case looked at whether the primary purpose of the communication was legal or non-legal, the firm wrote, the U.S. Court of Appeals for the District of Columbia Circuit looks only at whether obtaining or giving legal advice was one significant purpose of the communication.
The federal government told the justices that their intervention is not warranted because it wouldn’t matter what test the lower courts used in this case. When the district court ordered disclosure of documents whose primary purpose was not legal, U.S. Solicitor General Elizabeth Prelogar explained, it nonetheless redacted any legal advice.
